2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-26-2012

In Re: Arthur;Baldwin, et al

Precedential or Non-Precedential: Precedential

Docket No. 11-4447

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4447

_____________

IN RE: 

ARTHUR BALDWIN; LINDA COBB; JEROME 

BULLOCK; ANGELA FORD; JOANNE ANDIORIO; J.W. 

WALLACE; TWYLA JOHNSON; NICOLE GAINES; 

WILLIAM THOMPKINS; ROY PENNER; MELODY 

CAUSEY; JAMES SHEALEY; LEONARD R. DUNCAN; 

RENEE FRAZIER; CLAUDIA ALLEN; EUGENE 

DOWING; GEORGE CALLOWAY; B.J. LEBER; 

REVERAND RONALD PETERS,

 Petitioners

_____________

On a Petition for a Writ of Mandamus from the United States 

District Court

for the Western District of Pennsylvania

(Related to D.C. Civil No. 2-10-cv-00800)

_____________

Argued May 31, 2012

Before: AMBRO, JORDAN, and VANASKIE, Circuit 

Judges

(Filed: November 26, 2012)
2

Mark R. Hamilton, Esq. (ARGUED)

Phillip J. Sbrolla, Esq.

Rebecca Sember Izsak, Esq.

Cipriani & Werner, P.C.

650 Washington Road, Suite 700

Pittsburgh, PA 15228

Counsel for Petitioners Arthur Baldwin, Linda Cobb, 

Jerome Bullock, Angela Ford, Joanne Marie Andiorio, 

J.W. Wallace, Twyla Johnson, Nicole Gaines, William 

Thompkins, Roy Penner, Leonard R. Duncan, Renee 

Frazier, Claudia Allen, Eugene Downing, George 

Calloway, B.J. Leber, and Reverend Ronald Peters

Frank H. Scialdone, Esq.

Mazanec, Raskin & Ryder Co., L.P.A.

100 Franklin’s Row

34305 Solon Road

Cleveland, OH 44139

Counsel for Petitioners James Shealey and Mel Lee 

Causey1

Nicholas D. Krawec, Esq.

Arthur W. Zamosky, Esq. (ARGUED)

Bernstein Law Firm P.C.

707 Grant Street, Suite 2200

Gulf Tower

Pittsburgh, PA 15219

 1 Mel Lee Causey is incorrectly identified in the 

caption as “Melody Causey.”
3

Counsel for Respondent Official Committee of 

Unsecured Creditors, on Behalf of the Lemington 

Home for the Aged

_____________

OPINION

_____________

VANASKIE, Circuit Judge.

Concerned about the consequences of a District Court 

order setting a 7.5 hour per side limit on the parties’ 

presentation of evidence at trial, the sixteen named defendants 

in this litigation (the “Lemington Defendants”) seek a writ of 

mandamus to vacate the time- limit order.

2

 Because we 

believe that a direct appeal presents an adequate means for 

the Lemington Defendants to challenge the District Court’s 

order, we will deny the petition for a writ of mandamus.

I.

The Lemington Home for the Aged (the “Home”) is a 

non-profit nursing care facility in Pittsburgh, Pennsylvania. 

Beginning in the 1980’s, the Home faced a series of 

escalating financial difficulties, eventually culminating in the 

Home ceasing to admit new patients and filing a Chapter 11 

bankruptcy petition in the United States Bankruptcy Court for 

the Western District of Pennsylvania in 2005. The 

Bankruptcy Court appointed a Committee of Unsecured 

 2 Although this petition’s caption includes nineteen 

named defendants, the parties state that there are presently 

only sixteen named defendants. 
4

Creditors (the “Committee”), approved closure of the Home, 

and authorized the Committee to commence adversary 

proceedings against the Home’s officers and directors in the 

District Court. 

On August 27, 2007, the Committee filed its second 

amended complaint on behalf of the debtor, asserting causes 

of action against the Lemington Defendants—former officers 

and directors of the Home—for breach of their fiduciary 

duties of care and loyalty and for deepening insolvency. The 

District Court granted summary judgment to the Lemington 

Defendants, holding that the business judgment rule and the 

doctrine of in pari delicto precluded the Committee’s breach 

of fiduciary duty claims, and that the Committee failed to 

show fraud sufficient to support a deepening insolvency 

claim. We vacated the District Court’s grant of summary 

judgment and remanded for trial. See Official Comm. of 

Unsecured Creditors ex rel. Estate of Lemington Home for 

the Aged v. Baldwin (In re Lemington Home for the Aged), 

659 F.3d 282, 285 (3d Cir. 2011). 

Following remand, the District Court issued an order 

on October 31, 2011, scheduling jury selection and trial for 

December 5, 2011. The District Court also scheduled a 

preliminary pre-trial conference for November 22, 2011 and a

final pretrial conference for December 1, 2011. 

Before the November 22, 2011 preliminary pretrial 

conference, the parties stipulated to fourteen facts and 

identified approximately 400 proposed exhibits. The parties 

also submitted proposed witness lists. The Committee stated 

that it intended to call up to fifty-one witnesses, and the 

Lemington Defendants stated that they intended to call up to 
5

thirty-four witnesses. The Lemington Defendants’ witness 

list included twenty definite witnesses and fourteen standby 

witnesses. Of the definite witnesses, five were expert 

witnesses and fifteen were fact witnesses. The Lemington 

Defendants’ descriptions of many of their witnesses’ intended 

testimony were similar. For example, the Lemington 

Defendants indicated that six of their definite director 

witnesses intended to testify as to their responsibilities to the

Home and the reasons for the decision to cease admitting new 

residents to the Home and to file for bankruptcy in 2005. 

On November 22, 2011, the District Court held a

preliminary pretrial conference, during which it expressed 

frustration with what it viewed as the parties’ failure to 

“streamline [the] case.” (Lemington Defendants’ Pet. at 31.) 

In particular, the District Court noted that “[t]he duplication 

of witnesses [was] overwhelming,” and that the parties 

appeared “unwilling[] to stipulate to the most basic facts.” 

(Id.) Explaining that it would not allow the parties to force 

the “jury [to] sit through endless repetitive testimony,” the 

District Court limited each side’s witness testimony to 7.5 

hours and limited the parties’ opening and closing statements 

to half an hour per side per statement. (Id.) In total, the 

District Court allowed each side 8.5 hours to present their 

cases. 

The Lemington Defendants objected to the District 

Court’s time-limit order, explaining that they did not believe 

that 8.5 hours was adequate time to present their case. The 

District Court responded that it viewed the expert testimony 

and exhibits as excessive and the fact witnesses as redundant. 

It did, however, offer the Lemington Defendants the option of

extending their opening and closing time to forty minutes, if 
6

they divided their opening and closing time between the 

officers and the directors. It thus extended the Lemington 

Defendants’ total possible presentation time to eight hours 

and fifty minutes. 

Following the November 22, 2011 conference, the 

parties stipulated to ten additional facts. The Lemington 

Defendants also added an additional definite witness to their 

witness list, and provided a supplemental list of thirty-seven 

possible creditor witnesses to testify regarding damages. The 

thirty-seven creditor witnesses were almost entirely 

custodian-of-records witnesses. 

The Lemington Defendants also moved for 

reconsideration of the District Court’s trial time-limit order, 

contending that they did not have warning that the District 

Court would impose such a short time limit, and that the time 

allotted to them was insufficient to present their case. The 

Lemington Defendants instead estimated that the trial would 

likely require a total of approximately sixteen days, or eight 

days per side. 

The District Court held the final pretrial conference on 

December 2, 2011. Addressing the Lemington Defendants’ 

motion for reconsideration, the District Court observed that, 

in view of its well-settled practice of trying cases “on the 

clock,” the parties had fair warning that a time limit would be 

imposed. The District Court also expressed disappointment 

that the parties had not cooperated with each other since the

November 22, 2011 conference, and reiterated that “[i]t’s 

unfair to our jurors to bring them in here and just put witness 

after witness on the stand with repetitive testimony.” 

(Lemington Defendants’ Pet. at 89.) The District Court 
7

concluded that it “would have been willing to give [the 

parties] a little more time or at least talk to [them] about [the 

time-limit order] if [they] had followed [its] suggestions,” but 

because they did not “work with [the District Court] . . . [the 

District Court will] not . . . give [the parties] 16 days to try the 

case.” (Id. at 97.) The District Court offered, however, to 

stay the trial and to certify the time-limit issue for appeal. 

Based on the District Court’s order certifying the timelimit issue for appeal, the Lemington Defendants petitioned 

for permission to appeal under 28 U.S.C. § 1292(b) and, in 

the alternative, for a writ of mandamus. We dismissed the 

petition to appeal under § 1292(b) because the District Court 

did not certify that the time-limit order “involve[d] a 

controlling question of law as to which there is substantial 

ground for difference of opinion” pursuant to § 1292(b). We 

now address the Lemington Defendants’ petition for a writ of 

mandamus.

II.

We have authority to issue a writ of mandamus under 

28 U.S.C. § 1651(a), which permits “[t]he Supreme Court and 

all courts established by Act of Congress [to] issue all writs 

necessary or appropriate in aid of their respective 

jurisdictions and agreeable to the usages and principles of 

law.”3

 3 Because 28 U.S.C. § 1651(a) allows us to issue writs 

of mandamus “in aid of” our jurisdiction, “the case must be 

one that lies within ‘some present or potential exercise of 

appellate jurisdiction.’” Westinghouse Elec. Corp. v. 

Republic of Phil., 951 F.2d 1414, 1422 (3d Cir. 1991)

 The writ of mandamus is available exclusively in 
8

“exceptional circumstances.” Will v. United States, 389 U.S. 

90, 95 (1967) (citing De Beers Consol. Mines, Ltd. v. United 

States, 325 U.S. 212, 217 (1945)). We ordinarily may issue 

“the writ only to confine inferior courts to their lawful 

jurisdiction or to compel them to exercise authority when they 

have a duty to do so.” De Masi v. Weiss, 669 F.2d 114, 117 

(3d Cir. 1982) (citing Will, 389 U.S. at 95). To obtain 

mandamus relief, “the petitioner must establish both that there 

is (1) ‘no other adequate means’ to attain the relief sought, 

and (2) a right to the writ that is ‘clear and indisputable.’” In 

re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006) (quoting Cheney 

v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004)). Even if the 

petitioner satisfies both prerequisites, our decision to issue the 

writ remains discretionary. Id. 

The Lemington Defendants argue that their right to the 

writ is clear and indisputable because the time-limit order is a 

clear abuse of discretion, and that they have no other adequate 

means to obtain relief because “without the granting of the 

Writ, [the Lemington Defendants’] pleas for adequate time to 

present their case at trial will go unheard, and there will be no 

way to rectify the harm imposed by the district court’s time 

limitations prior to the time set for trial.” (Lemington 

Defendants’ Pet. at 17.) In particular, the Lemington 

Defendants emphasize that immediate review is necessary 

because, if the Lemington Defendants can appeal only after 

 

(quoting Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591 (3d 

Cir. 1984)). This case is within the exercise of our potential 

appellate jurisdiction because the District Court had 

jurisdiction under 28 U.S.C. §§ 1331 and 1334(b), and we 

may obtain jurisdiction after the District Court enters final 

judgment under 28 U.S.C. § 1291.
9

the District Court enters final judgment, “the appellate court 

[will] be asked to speculate on the defenses that [the 

Lemington Defendants] intended to present and to reconstruct the case that [the Lemington Defendants] intended 

to set forth.” (Lemington Defendants’ Reply Br. at 14.) They 

also contend that the District Court’s time-limit order 

“violates due process and has in effect denied . . . their right 

to a jury trial, thus, justifying mandamus relief under the 

law.” (Id. at 13.) 

A.

The “no other adequate means” requirement to 

mandamus relief “emanates from the final judgment rule,”

which ordinarily requires the parties to await the district 

court’s entry of final judgment before seeking appellate 

review. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 

379 (3d Cir. 2005) (quoting Westinghouse Elec. Corp. v. 

Republic of Phil., 951 F.2d 1414, 1422 (3d Cir. 1991)); see 

also In re Briscoe, 448 F.3d at 212 (“An appellate court’s 

overuse of the writ to review interlocutory district court 

decisions would undermine the Congressional policy against 

piecemeal appeals.”). In accordance with our respect for the 

final judgment rule, “a writ of mandamus should not be 

issued where relief may be obtained through an ordinary 

appeal.” In re Chambers Dev. Co., 148 F.3d 214, 223 (3d 

Cir. 1998) (quoting Hahnemann Univ. Hosp. v. Edgar, 74 

F.3d 456, 461 (3d Cir. 1996)).

Assuming that the Lemington Defendants lose at trial, 

they will be able to appeal the District Court’s time-limit 

order following the entry of final judgment. See, e.g.,

Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 
10

604, 611 (3d Cir. 1995) (reviewing a district court’s trial 

time-limit order). Although we appreciate that postponing 

review until after the District Court enters final judgment may

increase litigation costs by forcing the parties to try this case 

under conditions that possibly constitute reversible error, 

“adverse interlocutory rulings . . . [that] increase the cost of 

litigation, cause inconvenience, or result in unanticipated 

delay . . . typically do not . . . warrant the extraordinary step 

of mandamus intervention.” In re Briscoe, 448 F.3d at 214

(citations omitted); see also Allied Chem. Corp. v. Daiflon, 

Inc., 449 U.S. 33, 36 (1980) (a litigant has other adequate 

means to challenge a district court’s order for a new trial in 

part because “[a] litigant is free to seek review of the 

propriety of such an order on direct appeal”). Moreover, the 

Lemington Defendants may win at trial, thereby avoiding our 

need to address their challenge to the time-limit order 

altogether.

We are not persuaded by the Lemington Defendants’ 

argument that they may have difficulty demonstrating on 

appeal how the time-limit order caused them prejudice at 

trial. Although the Lemington Defendants are correct that the 

time-limit order will not be reversible error if the record 

indicates that it caused no prejudice at trial, the Lemington 

Defendants’ possible need to show prejudice is no different 

than the burden on most litigants appealing purported trial 

errors. See, e.g., Duquesne Light Co., 66 F.3d at 611

(“[D]espite our concern about the district court’s [time-limit

decision], we will not reverse because we are unable to 

conclude that its ruling had any impact on the outcome of the 

case.”). Indeed, the fact that the Lemington Defendants may 

be unable to show prejudice at trial suggests that their right to 

relief is not clear and indisputable, a sine qua non of 
11

mandamus relief. In re Briscoe, 448 F.3d at 212. 

Accordingly, the Lemington Defendants’ potential difficulty 

in demonstrating prejudice at trial militates against granting 

the writ, rather than in favor of granting it.

B.

We also reject the Lemington Defendants’ argument 

that we may grant mandamus relief on the grounds that the 

District Court’s time limit “has in effect denied [them] their 

right to a jury trial.” (Lemington Defendants’ Reply Br. at 

13.) The Lemington Defendants correctly assert that writs of 

mandamus have issued to protect the right to a jury trial. See, 

e.g., Beacon Theatres v. Westover, 359 U.S. 500, 511 (1959)

(“[W]e think the right to grant mandamus to require [a] jury 

trial where it has been improperly denied is settled.”); 

Eldredge v. Gourley, 505 F.2d 769, 770 (3d Cir. 1974)

(granting a writ of mandamus to protect the right to a jury 

trial while the district court action remained pending); see 

also Maloney v. Plunkett, 854 F.2d 152, 154 (7th Cir. 1988)

(noting that the Supreme Court has suggested that “a less 

stringent test [for mandamus] might be proper where the 

challenged ruling ha[s] infringed [on] the right to [a] jury 

trial”); Golden v. Kelsey-Hayes Co. (In re Golden), 73 F.3d 

648, 658 (6th Cir. 1996) (“Where the constitutional right to a 

jury trial is involved, . . . some courts . . . have held that 

neither of the[] two preconditions [to mandamus relief] needs 

to be met.”) (citations omitted).

The unsound premise of the Lemington Defendants’ 

argument is that the time-limit order deprives them of their 

right to a jury trial. In fact, the order does not preclude 

adjudication of this controversy by a jury. 
12

To avoid the indisputable fact that their right to a jury 

trial remains intact, the Lemington Defendants suggest that if 

mandamus relief is permissible prior to final judgment to 

protect the right vel non to a jury trial, then it is also 

permissible prior to final judgment to ensure “a fair jury 

trial.” (Lemington Defendants’ Pet. at 18.) Because the 

District Court’s time-limit order does not, in the Lemington 

Defendants’ view, provide adequate time for them to present

their defenses, they assert that the time-limit order violates 

their right to a fair trial before a jury, and that they therefore

may obtain mandamus relief before trial, regardless of the 

availability of relief after final judgment.

The Lemington Defendants’ attempt to shoehorn a fair 

trial claim into a jury trial claim for which mandamus review 

may lie is unavailing. There is simply no basis for us to 

conclude that the time-limit order has the effect of depriving 

the parties of a jury trial. Nor can we decide ex ante that the 

effect of the time-limit order is so draconian and such a 

mockery of the trial process as to amount to no trial at all. It 

may be that, in this case, the time-limit order is found to be 

reversible error. But that determination must await the 

presentation of a record that identifies with precision the 

evidence that the Lemington Defendants were unable to 

present because the trial judge’s clock ran out. To hold 

otherwise would invite parties to seek mandamus relief 

whenever they are “placed on the clock,” requiring appellate 

courts to hazard guesses as to whether an impact of a timelimit order is so severe as to deprive a party of the right to a 

“fair” jury trial. We decline to endorse such use of the 

extraordinary remedy of the writ of mandamus. 
13

Notably, we have recognized that a district court may 

impose limits on the parties’ presentation time at trial, so long 

as the court both “mak[es] an informed analysis based on a 

review of the parties’ proposed witness lists and proffered 

testimony” and “allocates trial time evenhandedly.” 

Duquesne Light Co., 66 F.3d at 610. Other circuits have

likewise concluded that a district court may, in its discretion,

set reasonable trial time limits. See, e.g., United States v. 

DeCologero, 364 F.3d 12, 25 (1st Cir. 2004) (“[L]imits on 

witnesses and the time allowed to each side are permissible 

measures.”) (citations omitted); Deus v. Allstate Ins. Co., 15 

F.3d 506, 520 (5th Cir. 1994) (“In the management of its 

docket, the court has an inherent right to place reasonable 

limitations on the time allotted to any given trial.”) (citing 

United States v. Reaves, 636 F. Supp. 1575, 1577 (E.D. Ky. 

1986)); Sutkiewicz v. Monroe Cnty. Sheriff, 110 F.3d 352, 361 

(6th Cir. 1997) (“[A] district court has broad discretion to 

place limits on the presentation of evidence to prevent delay, 

waste of time, and needless presentation of cumulative 

evidence.”) (citing Duquesne Light Co., 66 F.3d at 609); MCI 

Commc’ns Corp., 708 F.2d at 1172-73 (holding that 

reasonable trial time limits do not violate the right to a fair 

trial); Johnson v. Ashby, 808 F.2d 676, 678 (8th Cir. 1987)

(“Trial courts have discretion to place reasonable limits on the 

presentation of evidence . . . .”) (citations omitted); Gen. 

Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1508 

(9th Cir. 1995) (“Generally, a district court may impose 

reasonable time limits on a trial.”) (citations omitted). 

Whether a District Court has abused its discretion in 

setting and administering a time-limit order is best addressed 

after trial, with a reviewing court able to assess a record that 

shows what was presented to the jury and what a party was 
14

unable to present. Only then may an informed decision be 

made as to whether a party was denied a fair trial.4

 

In denying mandamus relief, we emphasize that we are 

not ruling on the propriety of the time-limit order. We 

appreciate that this is a complex case, that the Committee has 

sued sixteen individual defendants, and that many of the 

defendants may need to testify to present their own defenses, 

even if some of their testimony is duplicative. Because 7.5 

hours may ultimately be too little time for the Lemington 

Defendants to adequately present their case, we do not 

conclude that the time-limit order is permissible or valid. We

hold only that a post-judgment appeal is adequate to assure 

meaningful review of the propriety of the time-limit order.

5

 4 The Lemington Defendants have not cited any case 

where an appellate court has held before trial that a time-limit 

order deprived a party of a fair trial. 

5 It is difficult to conceive how either side in this 

complex case could possibly present the necessary evidence 

to a jury in 7.5 hours of trial time. Although the Committee 

has not sought immediate review of the time-limit order, it 

did make clear at oral argument that it was not willing to 

concede that the order was a proper exercise of discretion. 

Instead, the Committee asserted that it was not waiving its 

right to challenge the time-limit order if it does not prevail at 

trial. It is also difficult to understand the District Court’s 

rationale in allocating to the entire defense side of the case 

7.5 hours of evidence presentation time given the fact that 

there may be different liability rules and defenses applicable 

to defendants who were members of the board of directors 

versus defendants who were officers of the non-profit entity. 

Compare 15 Pa. Cons. Stat. Ann. § 5712(a)-(b) (standard of 
15

III.

For the foregoing reasons, we will deny the petition for 

a writ of mandamus.

 

care for directors of a nonprofit corporation) with 15 Pa. 

Cons. Stat. Ann. § 5712(c) (standard of care for officers of a 

nonprofit corporation). We therefore urge the District Court 

to re-examine the time-limit order to avoid the necessity of a 

re-trial. We trust that if, at any time, the District Court is 

persuaded that any time limits it has set are not sufficient to 

allow for a fair presentation of the case, the Court will take 

appropriate steps to see that due process is satisfied.